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The 4th U.S. Circuit Court of Appeals doubled down on the validity of prepublication review processes for federal employees who want to publish information about their experiences in government.
Five former intelligence employees sued the government for having what they viewed as overly expansive and untimely prepublication review processes that prevented them from fully exercising their first amendment rights. But the appellate court sided with the government, holding that the process, as it currently exists, is constitutional.
“We conclude that the defendant agencies’ prepublication review regimes are a reasonable means of serving the government’s compelling interest in keeping classified or otherwise sensitive information secret, and therefore they do not violate the plaintiffs’ First Amendment speech rights,” the three-judge panel said in its June ruling.
The decision backs last year’s district court ruling, which maintained that the protection of national secrets outweighs free-speech concerns.
The former employees — who worked at the Central Intelligence Agency, Department of Defense, National Security Agency and Office of the Director of National Intelligence — said in their filing that, in trying to publish books about their time in the government, publicly known information was censored and reviews took upwards of 11 months to complete.
“What you have here is a disconnect between the idea of prepublication review and the execution of prepublication review,” Kel McClanahan, executive director of National Security Counselors and a professor at The George Washington University Law School, said in an interview with Federal News Network.
The CIA, for example, requires current and former employees to go through different prepublication review processes. Books from current employees are only scanned for classified information, whereas former employees are scanned for appropriateness — what McClanahan defined as anything that would interfere with the CIA’s operations — in addition to classified information.
These kinds of extra measures, McClanahan said, have allowed CIA and other agencies to classify previous unclassified information.
In one case from 2010, a former Defense Intelligence Agency officer published a war memoir that DoD hadn’t reviewed. The department scrambled to buy the copies that had been released — but some copies still reached the public.
When the author published a second, redacted edition of his book, people found that the new version had some questionable redactions — like the censoring of “SIGINT,” or signals intelligence — on the grounds that their release would cause “identifiable harm” to the country’s national security.
In the appellate court case, a former ODNI employee said nearly 80% of the original redactions in his book were cleared after he appealed them.
“The fact that the appeal process reversed 80% is a good thing for the appeal process. It shows that they are doing, at least in that case, a conscientious peer review. But it speaks volumes about the fact that that had to be appealed in the first place,” McClanahan said. “There’s a great incentive to over redact. There’s no disincentive to over redact.”
This latest ruling, however, won’t necessarily hurt current or former employees’ chances of winning a lawsuit around a specific case of censorship. Instead, it will strengthen the government’s case for maintaining the current prepublication review system.
“This case was more of a broadside against the system,” McClanahan said. “They’re saying the fact that we’re having to do this is unconstitutional, that it’s too arbitrary. It is too wild westy that each agency can sort of make its own rules. And those rules differ wildly, both in how they’re written and how they’re executed.”
But intelligence employees can still work around these processes, McClanahan said. Tricks include avoiding the use of actual names in the body of the text and keeping meticulous footnotes to make the reviewer’s job easier.
“It’s not the end of reasonable prepublication review as we know it,” McClanahan said. “If agencies don’t voluntarily fix the system, the only thing I can suggest is educate yourself about the system. Educate yourself about the weaknesses of the system. Don’t assume that you are entitled to anything, because under the current law, you are not. You are not entitled to have them completed within a certain time period. You are not entitled to only have them redact classified information. What you are is entitled mostly to have it processed by someone who will hopefully apply the law.”